HomeMy WebLinkAbout994-R CatoneIn re: John D. Catone
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
Before:
File Docket: 93- 085 -C2
Date Decided: 2/15/96
Date Mailed: 3/1/96
Daneen E. Reese, Chair
Austin M. Lee, Vice Chair
Roy W. Wilt
John R. Showers
Rev. Joseph G. Quinn
Boyd E. Wolff
The State Ethics Commission received a request for reconsideration on
January 16, 1996, with respect to Order No. 994 issued on December 15, 1995.
Pursuant to Section 21.29 of the Regulations of the Commission, the discretion
of the State Ethics Commission to grant reconsideration is properly invoked as
follows:
521.29. Finality: reconsideration.
(b) Any party may ask the Commission to reconsider an
order or opinion within 15 days of service of the order or
opinion. The requestor shall present a detailed explanation
setting forth the reason why the order or opinion should be
reconsidered.
(c) A request for reconsideration filed with the
Commission will delay the public release of an order, but will
not suspend the final order unless reconsideration is granted
by the Commission.
(d) A request for reconsideration may include a
request for a hearing before the Commission.
(e) Reconsideration may be granted at the discretion
of the Commission if:
51 Pa. Code §21.29(b), (c), (d), (e).
(1) A material error of law has been made.
(2) A material error of fact has been made.
(3) New facts or evidence are provided which would lead
to reversal or modification of the order or opinion and if
these could not be or were not discovered by the exercise of
due diligence.
This adjudication of the Commission is hereby issued which sets forth the
Discussion4"and Reconsideration Order.
This Reconsideration Order and Order 994 are final and shall be made
available as public documents on the fifth (5th) business day following the date
of issuance of this Order.
Catone, Order No. 994 -R
Page 3
additionally note even if Catone was merely a member of the
Governor's Office staff, he would be indisputably subject to the
Ethics Law as an "executive -level state employee ":
"Executive -level State employee." The
Governor, Lieutenant Governor, cabinet
members, deputy secretaries, the Governor's
office staff, any State employee with
discretionary powers which may affect the
outcome of a State agency's decision in
relation to a private corporation or business
or any employee who by virtue of his job
function could influence the outcome of such a
decision.
65 P.S. §402.
Catone's second contention is that the Commission erroneously
concluded that he violated Section 3(a) of Act 9 of 1989 when he
utilized Commonwealth equipment for personal purposes. Catone
proffers this assertion without any analysis or support. As to
this violation, Catone also argues that the Commission did not make
the "necessary finding" that any actions taken by him had more than
a de minimis economic impact on the Commonwealth of Pennsylvania,
and that the Commission "misconstrued the concept of `de minimis'
failing to find that the loss to the Commonwealth was greater than
de minimis." Petition for Reconsideration, paragraph 2, at 5.
The Commission's findings on this violation of Section 3(a)
are supported by clear and convincing evidence of record.
Respondent has not proffered any factual or legal support for his
contrary view.
Contrary to Respondent's claim, the Commission specifically
found the economic impact which resulted from this conflict of
interest to be greater than de minimis. (See, Order No. 994 at
52). Furthermore, even if we had not specifically so stated, we
would not view such a finding to be a "necessary finding," for
reasons discussed below.
As for Respondent's mistaken belief that a loss to the
Commonwealth must be found, Section 3(a) of Act 9 of 1989 is
couched in terms of a private pecuniary benefit. Section 3(a) does
not require a loss by anyone or anything, let alone a loss by a
governmental body:
"Conflict" or "conflict of interest."
--Use by a public official or public employee of
the authority of his office or employment or
any confidential information received through
his holding public office or employment for
the private pecuniary benefit of himself, a
Catone, Order No. 994 -R
Page 4
member of his immediate family or a business
with which he or a member of his immediate
family is associated. "Conflict" or "conflict
of interest" does not include an action having
a de minimis economic impact or which affects
to the same degree a class consisting of the
general public or a subclass consisting of an
industry, occupation or other group which
includes the public official or public
employee, a member of his immediate family or
a business with which he or a member of his
immediate family is associated.
65 P.S. 402 (Emphasis added). Indeed, a conflict of interest can
occur even where the governmental body saves money.
Cappabianca, 89- 014 -R; Harper, 94 -001; Zangrilli, Order No. 946.
Respondent's third argument is that the Commission erroneously
concluded that he violated Section 3(a) of Act 9 of 1989 when he
performed private work for NVS while on Commonwealth time. Catone
maintains that the Commission made no findings that his actions
occurred on Commonwealth time, that he engaged in a conflict of
interest, or that his actions had more than a de minimis economic
impact on the Commonwealth of Pennsylvania.
Again, this violation was supported by clear
evidence, not the least of which consisted of
admissions where he bragged that in the course
business (day]" he spent 2'/, hours on NVS business.
coupled with others referenced in Order No.
established the violation.
As for Respondent's complaint that the Commission made no
finding that the Respondent engaged in a conflict of interest, the
finding of a violation of Section 3(a) of Act 9 of 1989 implicitly
so finds.
Likewise, the very finding of the Section 3(a) violation
implicitly precludes the existence of a de minimis economic impact.
It is not necessary for the Commission, in every instance where it
finds a Section 3(a) violation, to expressly state that the
exceptions to the definition of "conflict of interest" do not
apply.
Finally, we reject Respondent's fourth argument, pertaining to
his violation of Section 3(c):
Section 3. Restricted activities
(c) No public official, public employee
or nominee or candidate for public office
shall solicit or accept, anything of monetary
and convincing
Catone's own
of "a normal
This remark,
994, clearly
Catone, Order No. 994 -R
Page 5
65 P.S. §403(c).
value, including a gift, loan, political
contribution, reward, or promise of future
employment based on any understanding of that
public official, public employee or nominee
that the vote, official action, or judgment of
the public official or public employee or
nominee or candidate for public office would
be influenced thereby.
Respondent argues that, by definition, he could not violate
Section 3(c) because he "had no vote, could take nonofficial action
or exercise any official judgment which he could influence in
exchange for anything of monetary value." Respondent's Petition
for Reconsideration, paragraph 4(a), at 6. Respondent additionally
argues that the only action found by the Commission to have been
taken by him was with regard to PEBTF, an agency which is not part
of the Commonwealth, and that NVS did not have -- and was not found
to have had -- any interest in any contracts with any agency of the
Commonwealth.
All of Catone's above arguments are to no avail. The elements
of Catone's violation of Section 3(c) are fully established by his
own written words, with which he solicited a monthly salary from
NVS based upon an understanding that his official action and
judgment would be influenced thereby. Catone cannot escape the
consequences of his actions by claiming, now that he has been
caught, that he did not have the ability to deliver what he
promised. He did.
In sum, no argument has been raised by the Respondent which
would meet the requisite standard for reconsideration. No material
error of law has been established. No material error of fact has
been established. No new facts or evidence have been provided
which would lead to reversal or modification of the Order.
Respondent has failed to meet his burden of proof to establish any
need for reconsideration. The Petition for Reconsideration is
denied.
In re: John D. Catone File Docket: 93- 085 -C2
Date Decided: 2/15/96
Date Mailed: 3/1/96
RECONSIDERATION ORDER NO. 99 -R
1. The Petition for Reconsideration of Catone, Order No. 994, is
denied.
BY THE COMMISSION,
&44U et
DANEEN E. REESE, CHAIR